Who Gets Seated First: Sotomayor Or Franken?

As a question of legal process, it’s now worth asking who will successfully be seated to their aspirational office first: Supreme Court Justice Sonia Sotomayor — or Sen. Al Franken (D-MN)?

I asked Prof. Larry Jacobs from the University of Minnesota, and he explained to me that it really comes down to what happens next after Franken presumably wins against Norm Coleman’s appeal at the Minnesota Supreme Court. Does Franken get his certificate of election immediately — which would require the signature of Republican Gov. Tim Pawlenty — or will Coleman be able to successfully delay it further?

“It’s gonna pivot on two things,” said Jacobs. “What is it the Minnesota Supreme Court does? Is it a decisive margin and do they provide clear instructions — which I think they will — and it depends on Pawlenty’s presidential aspirations.”If Franken can get a certificate right after the state Supreme Court presumably rules in his favor, which Jacobs said is likely to happen by early July, then he would potentially be seated at about the same time as Sotomayor’s confirmation process will be finishing up. At that point, it would be a genuine toss-up for who gets seated first. But what if he can’t get the certificate?

If the state Supreme Court’s ruling is unanimous or a 4-1 margin, with clear instructions that a certificate must be issued, at that point Pawlenty would most likely sign it. But if he were to hold it up, and/or if Coleman can take this into the federal courts, it would get tricky.

“You walk through the pacing of what’s gonna happen here, and assume that Coleman loses,” Jacobs explained. “He’s gonna have to put together a brief, file it with the federal court. It’s quite likely that the federal court – let’s take the optimistic scenario and think a federal court agrees to hear it, that’s gonna take weeks. Then you’re gonna have him filing briefs, counter-briefs by Franken. That’s just weeks and weeks and weeks. So you start in July, it goes into early Fall. If the federal court refuses to hear it, then you have it appealed up the chain of command.”

Another thing to look out for is that Pawlenty has been taking a strong fiscal conservative stance in his budget battle against the Democratic legislature, as he has seemingly laid the groundwork for a White House campaign — and this Senate seat could become another battle. “I’ve thought all along that we may actually see the political firefight that, in Minnesota, has been a bit subdued,” said Jacobs. “If things play out as they seem they might, we might see kind of a major national battle breaking out, if Pawlenty decides to use a decision against Coleman as part of his campaign for President.”